Sunday, May 30, 2010

Despite recent evidence that scores on the Psychopathy Checklist-Revised (PCL-R) vary widely in adversarial legal contexts depending on which party retained the evaluator, the test has become increasingly popular in forensic work. In Texas, indeed, Sexually Violent Predator (SVP) evaluators are required by statute to measure psychopathy; almost all use this test. It is not surprising that prosecutors find the PCL-R particularly attractive: Evidence of high psychopathy has a powerfully prejudicial impact on jurors deciding whether a capital case defendant or a convicted sex offender is at high risk for bad conduct in the future.

But a current effort by the instrument's author, Robert Hare, to suppress publication of a critical article in a leading scientific journal may paradoxically reduce the credibility of the construct of psychopathy in forensic contexts.

That's the opinion of two psychology-law leaders, psychologist Norman Poythress and attorney John Petrila of the University of South Florida (two authors of a leading forensic psychology text, Psychological Evaluations for the Courts), in a critical analysis of Dr. Hare's threat to sue the journal Psychological Assessment. The contested article, "Is Criminal Behavior a Central Component of Psychopathy? Conceptual Directions for Resolving the Debate," is authored by prominent scholars Jennifer Skeem of UC Irvine and David Cooke of Glasgow University. The study remains unpublished.

"[T]he threat of litigation constitutes a serious threat to academic freedom and potentially to scientific progress," write Poythress and Petrila in the current issue of the International Journal of Forensic Mental Health. "Academic freedom rests on the premise that advances in science can only occur if scholars are permitted to pursue free competition among ideas. This assumes that scholars have the liberty to do their work free from limitations imposed by political or religious pressure or by economic reprisals."

According to Poythress and Petrila, after the critical article passed the peer-review process and was accepted for publication, Dr. Hare's lawyer sent a letter to the authors and the journal stating that Dr. Hare and his company would "have no choice but to seek financial damages from your publication and from the authors of the article, as well as a public retraction of the article" if it was published. The letter claimed that Skeem and Cooke's paper was "fraught with misrepresentations and other problems and a completely inaccurate summary of what amounts to [Hare's] life's work" and "deliberately fabricated or altered quotes of Dr. Hare, and substantially altered the sense of what Dr. Hare said in his previous publications."

In general, defamation claims must prove that a defendant made a false and defamatory statement that harmed the plaintiff's reputation. Truth is an absolute defense. Critical opinions are also protected from defamation actions, as are "fair comments" on matters of public interest.

In this case, the contents of Skeem and Cooke's contested article have not been made public. However, it is hard to see how critical analysis of a construct that is enjoying such unprecedented popularity and real-world impact would NOT be of public interest.

Poythress and Petrila express concern that defamation claims against opposing researchers, while traditionally rare, may be becoming more common, leading to a potentially chilling effect on both individual researchers and the broader scientific community. Like so-called SLAPPS -- Strategic Lawsuits Against Public Participation -- used by corporations and other special interest groups to impede public participation, even meritless defamation lawsuits extract heavy penalties in terms of lost time and money and emotional distress.

Judges have been critical of pretextual deployment of defamation lawsuits, Poythress and Petrila report; a judge in one case warned that "plaintiffs cannot, simply by filing suit and crying 'character assassination!,' silence those who hold divergent views, no matter how adverse those views may be to plaintiffs' interests. Scientific controversies must be settled by the methods of science rather than by the methods of litigation."

Researchers avoid conducting critical research out of fear of lawsuits.

Academics decline to serve as volunteer peer reviewers for academic journals due to loss of anonymity in defamation suits.

Journal editors self-censor on controversial topics.

As Poythress and Petrila conclude:

Because publication of the article by Professors Skeem and Cooke has effectively been long delayed, if not ultimately suppressed, one clear impact of this threat to sue is that researchers who may have been willing to investigate alternative models of psychopathy that might have been derived from the Skeem and Cooke article are not able to do so, simply because the article is unavailable. Because science progresses, in part, both by confirming viable models and disconfirming nonviable ones, the suppression of information relevant to constructing candidate models for empirical evaluation can be viewed as impeding the progress of science….

[I]t seems clear from our review that such threats strike at the heart of the peer review process, may have a chilling effect on the values at the core of academic freedom, and may potentially impede the scientific testing of various theories, models and products.In our view it is far better to debate such matters in peer review journals rather than cut off debate through threats of litigation.

In court, meanwhile, the effects of Dr. Hare's threat may prove paradoxical. Attorneys whose clients could be prejudiced by introduction of the Psychopathy Checklist may be able to discredit the instrument by pointing to the suppression of critical literature about the underlying construct of psychopathy.

POSTSCRIPT: Just hours after I posted this, alert readers advised me that: (1) Dr. Skeem discusses the as-yet-unpublished article in her 2009 book, Psychological Science in the Courtroom: Consensus and Controversy, co-authored by Kevin Douglas and Scott O. Lilienfeld (page 179 in the Google book view is HERE), and (2) according to Dr. Hare's website, he has a response in press (which, ironically, cites the Skeem and Cooke article as being published last year).

The full article is: "PCL-R Psychopathy: Threats to Sue, Peer Review, and Potential Implications for Science and Law. A Commentary," by Norman Poythress and John P. Petrila, in the current issue of the International Journal of Forensic Mental Health. The abstract if available HERE; the full article requires a subscription.

7 comments:

The PCL has always been a bit of a sham. It simply does not do a very good job at all at measuring psychopathy. What is measures, largely based on historical factors, is propensity for antisocial or criminal behavior. As much as Dr. hare has tried to convince us otherwise, a high score on the PCL-R indicates a higher risk of recidivism but it has nothing to do with whether or not the individual is a psychopath.

I worked under Professor Cooke in the past. Lovely guy and it was known even then that Hare didn't tolerate dissent. Cooke questioned the PCL-R factor structure and was effectively ex-communicated by Hare and associates.

This is all very sad. It seems to me that Professor Hare has done a brilliant job in championing the concept of psychopathy and, perhaps, more importantly, of maintaining a focus on assessing enduring traits of personality as important in risk assessment. He has made an important contribution to the area. That importance will remain whether psychopathy turns out to be best conceptualized as one trait or many.

The PCL-R may be flawed; so are the WAIS, MMPI, MCMI etc; that doesn't stop them being useful (sometimes!).

However it will be a grave disservice to psychological science and to test authors, if tests become fought over like brands of breakfast cereal. The peer review process is there to ensure robust but fair academic discussion and hopefully scientific and clinical progress. It would be ironic if issues such as this lead to slower progress in the development of better risk assessment practice.

(My post below has been copied from my response to this article on the blog www.mindhacks.com)

Woah, thats really bad news. Using the legal system to attack your critics rather than responding with a letter or article of your own in the same journal really undermines the whole scientific method in this area.

Its a real shame because I'm actually quite a fan of Hare's PCL. Its only the second factor that includes criminal behaviours, whereas the first factor refers to selfishness and narcissism, which "successful" psychopaths may have in abundance whilst not engaging in criminal activity. The second factor describes some behaviours which are in fact similar to those encountered in brain injured persons with orbitofrontal injury. Hare himself makes a big distinction between "true" psychopathy (factor 1) and criminal antisocial personality disorder (factor 2). Only the antisocial psychopath is high in both factors, and those are the types that do tend to be incarcerated, as the "axe murderer" type.

If Skeem and Cooke are claiming that criminality is not central to psychopathy, they are actually agreeing with Hare. However, if they are doing so in a way which is criticising his work, I can only imagine that they must be presenting a "straw man" of his arguments and misrepresenting them. This might be what is pissing him off so much.

Still, it would be better, more professional, more scientific and better for Hare's reputation if he published a harsh rebuttal of their article, pointing out that they have either misunderstood or misrepresented his work.

I suppose that if they have actually fabricated quotes and attributed them to him, then they are actually lying about his work, which might warrant a libel suit.

In my work, Alan Baddeley's central executive is always misrepresented, mainly because very few people have read his 1986 chapter in which he introduced the term. I found that reading the original work, politely emailing the author for clarification, and citing the response as personal communication was the best approach. I hope that Skeem and Cooke tried this with Hare and that they have saved any emails they recieved back!

I'm not a psychologist or psychiatrist but I know a hit job when I see one. One doesn't have to read past the headline "Psychopath guru blocks critical article" to know what's going on here. Choosing to write "Psychopath guru" instead of "Psychopathy guru" is quite a deliberate swipe at Hare -- essentially trying to call the guru a psychopath. And what about "critical article" which elevates the contents of the article to "indispensable" before anyone has even had a chance to judge it for themselves.

Very unprofessional.

Furthermore, if one of the charges leveled by Hare is that he is misquoted by Skeem and Cooke, then that's quite a serious charge and it's one that can and must be remedied before their article is published.

And finally, having read some of Hare's work on Psychopathy myself, I tend to agree with the commenter above (Tom Michael) when he says that "If Skeem and Cooke are claiming that criminality is not central to psychopathy, they are actually agreeing with Hare."

Saty13, you attribute far too much psychopathic deviousness to me based on my choice of words:

1) My use of the word "psychopath" as opposed to "psychopathy" was most definitely NOT intended as a statement about Hare's character. That potential (mis) interpretation did not even occur to me. I hope to forestall any further misreading by adding the letter y.

2) You've also misunderstood my use of the word "critical." I'm using that word in its most common dictionary definition -- "of, or relating to, critics or criticism."

3) Finally, you put the word "indispensable" in quotes. I don't see where I used that word at all.

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Karen Franklin, Ph.D. is a forensic psychologist and adjunct professor at Alliant University in Northern California. She is a former criminal investigator and legal affairs reporter. This blog features news and commentary pertaining to forensic psychology, criminology, and psychology-law. If you find it useful, you may subscribe to the newsletter (above). See Dr. Franklin's website for more information.

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